Karnataka High Court
Sri Shivaprasad vs National Insurance Co Ltd on 8 November, 2022
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.11139 OF 2011(MV)
C/W
MFA Crob.No.37 OF 2012(MV)
IN MFA 11139/2011
BETWEEN:
Sri. Shivaprasad,
S/o Rajashekar,
Aged about 29 years,
R/at No.112, IInd Cross,
Hoysalanagar,
Nagarabhavi Main Road,
Bangalor-72. ... Appellant
(By Sri.Shripad V Shastri, Advocate)
AND:
1. National Insurance Co. Ltd.,
D.O.IV, II Floor,
Kumarakrupa Road,
Shivananda Circle,
Bangalore-01,
By its Divisional Manager.
2. Narasahanumaiah,
Major by Age,
S/o Late. Anjanappa,
R/o No.9/2-3, 20th Cross,
5th Main Road,
2
Bhuvaneshwari Nagara,
Magadi Main Road,
Bangalore-560 023. ... Respondents
(By Sri.O.Mahesh, Advocate for R1;
Notice to R2 is dispensed with
V/o dated: 13.04.2012)
This MFA is filed under Section 173(1) of MV Act, against
the Judgment and Award dated:13.07.2011 passed in MVC
No.2474/2010 on the file of the Principal MACT & Chief Judge,
Court of Small Causes, Bangalore, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
IN MFA Crob 37/2012
BETWEEN:
National Insurance Co. Ltd.,
D.O. Iv, II Floor,
Kumarakrupa Road,
Shivananda Circle,
Bangalore-560 001.
By
Regional office,
Subharam Complex,
144, M.G. Road,
Bangalore-560 001.
By its Manager. ... Cross Objector
(By Sri. O.Mahesh, Advocate)
AND:
1. Sri. Shivaprasad,
S/o Rajashekar,
Aged about 30 years,
3
R/at No.112, IInd Cross,
Hoysalanagar,
Nagarabhavi Main Road,
Bangalor-560 072.
2. Narasahanumaiah,
Major by Age,
S/o Late. Anjanappa,
R/o No.9/2-3, 20th Cross,
5th Main Road,
Bhuvaneshwari Nagara,
Magadi Main Road,
Bangalore-560 023. ...Respondents
(By Sri. Shripad V Shastri, Advocate for R1:
Sri. S. Gurudevaswamy, Advocate for R2)
This MFA Crob. is filed under Order 41 Rule 22 of CPC,
read with Section 173(1) of MV Act against the judgment and
award dated: 13.07.2011 passed in MVC No.2474/2010 on the
file of the Principal AMACT, Chief Judge, Court of Small Causes,
Bangalore, awarding a compensation of Rs.3,41,909/- with
interest @ 6% p.a. from the date of petition till realization.
This MFA and MFA Crob., coming on for hearing, this day,
this Court, delivered the following:
JUDGMENT
MFA No.11139/2011 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, (for short, 'the Act') and MFA Crob.No.37/2012 is filed by the Insurance Company under Order 41 Rule 22 of CPC being aggrieved by the judgment and award dated 13.07.2011 passed by 4 the Principal MACT & Chief Judge, Court of Small Causes, Bangalore in MVC No.2474/2010. Since the challenge is to the same judgment, both the appeal and cross objection are clubbed together, heard and common judgment is being passed.
2. Facts giving rise to the filing of the appeal and cross-objection, briefly stated are that on 09.04.2009 at about 10.00 p.m. the claimant was proceeding on motorcycle bearing registration No.KA-02/EH-244 from Bangalore towards Magadi as a pillion rider. When they reached near Gollarahatti, Yeshwanthapura Hobli, Bangalore North Taluk, at that time, the rider of the motorcycle rode the same at a high speed and in a rash and negligent manner and dashed against a pedestrian. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he 5 spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos.1 and 2 appeared through counsel and filed written statements in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the rider of the offending vehicle did not have valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded 6 the evidence. The claimant himself was examined as PW-1 and Dr.Arun L.Naik was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P13. On behalf of the respondents, no witness was examined but got exhibited documents namely Ex.R1 to Ex.R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.3,41,909/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal and cross objection have been filed.
6. Sri O.Mahesh, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, the Tribunal has erred in holding that the claimant was the pillion rider contrary to medical records of 7 the BGS Hospital which shows that on 09.04.2009 at 11.50 p.m. the injured claimant himself was riding the motorcycle under the influence of alcohol.
Secondly, the compensation awarded by the Tribunal is on the higher side. In order to prove the injuries, claimant examined PW-2, a doctor of BGS Global Hospital. This witness was cross-examined by counsel appearing for the insurer and cross-examination was cut short as the doctor had an emergency call. Even though the doctor has deposed that the claimant has suffered 10% intellectual disability and 10% neuropsychological disability, this doctor is not available for cross-examination. Even though the court summons has been taken out, the doctor was not available for the Insurance Company to cross-examine twice. Hence, the insurer could not confront and prove the medical history where injured himself was riding the insured motorcycle and he was referred to Abhaya Hospital 8 for De-addiction Therapy as he was known alcoholic as per medical records.
Thirdly, the injured himself filed an affidavit dated 15.04.2010 wherein he tried to overcome the medical history on the ground that the said medical history was given by his friend without disclosing his name and it was for obvious reason that he himself is the rider of the motorcycle and the friend was not examined by the claimant to prove that he was actually a pillion rider and not the rider as disclosed in the medical history of BGS Global hospital.
Fourthly, even if the intellectual disability of 10% is considered, it does not affect his day today activities. Therefore, the Tribunal has rightly not granted any compensation under the head disability.
Fifthly, the Tribunal has considered the monthly income of the claimant as Rs.9,000/- on the basis of Ex.P6 certificate produced by the claimant, but he has not 9 examined the author of the document. Therefore, the Tribunal has erred in considering the monthly income of the claimant as Rs.9,000/-.
Lastly, even the compensation awarded by the Tribunal for 'pain and sufferings' and other heads is on the higher side. Hence, he sought for allowing the cross- objection filed by the Insurance Company.
7. On the other hand, Sri Shripad V.Shastry, the learned counsel appearing for the claimant has raised the following contentions:
Firstly, at the time of the accident one Raju was riding the motorcycle. The claimant was proceeding as a pillion rider. It is very clear that he has given a specific evidence and as per the FIR and charge sheet it is very clear that one Raju was riding the motorcycle. To disprove the claim of the claimant the respondents have not examined any witness and they have not produced any documents. Considering the evidence of the parties and the materials 10 available on record the Tribunal has rightly held that one Raju who was riding the motorcycle was negligent in causing the accident.
Secondly, due to the accident the claimant has suffered grievous injuries. He has examined the doctor who has deposed that the claimant has suffered 10% intellectual disability and 10% neuropsychological disability. Due to disability he was unable to continue his job and he has been removed from the job. The Tribunal has not granted any compensation under the head disability.
Thirdly, the compensation awarded by the Tribunal on the other heads are on the lower side. Hence, he sought for allowing the appeal filed by the claimant.
8. Heard the learned counsel for the parties and perused the judgment and award and the original records.
9. The case of the claimant is that on 09.04.2009 at about 10.00 p.m. the claimant was proceeding on motorcycle bearing registration No.KA-02/EH-244 from 11 Bangalore towards Magadi as a pillion rider. When they reached near Gollarahatti, Yeshwanthapura Hobli, Bangalore North Taluk, at that time, the rider of the motorcycle rode the same at a high speed and in a rash and negligent manner and dashed against a pedestrian. As a result of the aforesaid accident, the claimant who was the pillion rider sustained grievous injuries and was hospitalized.
After recovering from the injuries he has filed the claim petition. He has examined himself as PW-1 and Dr.Arun L.Naik as PW-2 and produced 13 documents. In his evidence he has reiterated the statement made in the claim petition.
Immediately after the accident he has been admitted to the BGS Global Hospital. In the wound certificate it has been mentioned that the claimant has been brought to the hospital by his friend, he has suffered an injury in RTA occurred on 09.04.2009 due to rash and negligent riding of 12 the two wheeler hitting a pedestrian and lost control. Immediately after the FIR has been registered against the rider of the motorcycle i.e., Raju, the police, after thorough investigation have filed charge sheet against the rider of the motorcycle. Therefore, it is very clear that one Raju was riding the motorcycle and the claimant was proceeding as a pillion rider. The Tribunal has rightly answered issue No.1 in the affirmative holding that Raju who was riding the motorcycle was negligent in causing the accident.
Re.quantum:
10. Due to the accident claimant has suffered fracture maxilla with hemosinus, fracture of right nasal bone, fracture of right medial and lateral plerygoid plates, subarachnoid haemorrhage, diffuse cerebral edema and haemorrhagic contusion of right temporal lobe. He has examined the doctor as PW-2, who in his evidence has deposed that the claimant has suffered 10% intellectual 13 disability and 10% neuropsychological disability. The Tribunal after considering the evidence of the doctor has rightly come to the conclusion that intellectual disability does not come in the way of earning capacity of the claimant and has rightly not granted any compensation under the head 'disability'.
The compensation awarded by the Tribunal under the heads 'pain and sufferings' and other heads is just and reasonable.
The judgment and award passed by the Tribunal does not call for interference.
Accordingly, both the appeals are dismissed. The amount in deposit is ordered to be transferred to the Tribunal forthwith.
Sd/-
JUDGE Cm/-